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The Winter Heating Assistance (Pension Age) (Scotland) Regulations 2024: scrutiny report

The Scottish Commission on Social Security's scrutiny report on the draft Winter Heating Assistance (Pension Age) (Scotland) Regulations 2024

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Contents

2. Eligibility

2.1 Overview

In the short term Pension Age Winter Heating Payment (PAWHP) will follow the UK Winter Fuel Payment (WFP) rules on a like-for-like basis so that people who are currently eligible for a WFP continue to be so for the winter 2024/25. The WFP provisions followed in the draft PAWHP regulations concern eligibility, exclusions from entitlement for certain groups (some hospital in-patients, some people in residential care or custody), applications, and payment amounts. However, the rules for challenging decisions will differ from WFP (see section 3.2).

2.2 Qualifying week

Draft regulation 7 says that an individual must have reached pensionable age before or during the qualifying week. Draft regulation 2(1) says that the qualifying week begins on the third Monday in September.

Responses to the Scottish Government’s consultation were broadly supportive of this approach, but some respondents noted concerns that “people who turn State Pension age following the qualifying week in September but during the winter will miss out on support in that initial year”¹ (for example, those who claim State Pension between the end of the qualifying week and mid-December).²

PAWHP will become the third winter heating payment in Scotland. SCoSS notes that the qualifying weeks for these payments are not all the same. PAWHP has the same September qualifying week as Child Winter Heating Payment. However, the qualifying week for Winter Heating Payment, starts on the first Monday in November. The Winter Heating Payment qualifying week was moved from September to November in order to address concerns about the length of time between the qualifying week and the date of payment.³

In our Winter Heating Payment scrutiny report⁴ SCoSS noted that moving the qualifying week to November was to the advantage of people who become eligible for a Winter Heating Payment later in the year (e.g. people who receive a qualifying benefit during the qualifying week).⁵

Similarly, a November qualifying week for PAWHP would enable people who reach pensionable age between September and November to qualify for that year’s payment. Further, those reaching age 80 in that period would be entitled to a higher rate for that year. However, this could have a knock-on impact on when individuals actually receive payment as data about entitlement to PAWHP would need to be available before payment can be processed, thus placing pressure on administrative processes.

Aligning qualifying weeks could aid simplicity and transparency for individuals and efficiency of administration. For example, someone who reaches pension age and receives Pension Credit may expect to get both PAWHP and Winter Heating Payment but receive only one due to the differing qualifying weeks (e.g. their birthday is between September and November). This kind of mismatch of expectations could put additional pressure on advice agencies and Social Security Scotland responding to queries from individuals.

SCoSS notes that responses to the Scottish Government’s consultation generally agreed with a November/December payment date, as this is when the weather is colder and heating bills increase. However, others argued for an earlier date (such as October) as Scotland becomes colder earlier than other parts of the UK and it would enable people to buy solid or liquid fuel in advance when they can be cheaper.⁶

More broadly, the Scottish Fuel Poverty Advisory Panel has recommended consolidating the various winter heating payments in the longer term⁷ (also discussed in section 6). This change could be in line with principle (g) (continuous improvement) and principle (h) (efficiency). However, SCoSS also notes that later qualifying weeks may require later payment dates, and that therefore a balance must be struck, as it is important to achieve the earliest possible payment date so that money is available when it is needed for winter fuel bills.

Observation 1: SCoSS recognises that there may be practical administrative barriers to changing the proposed qualifying week for Pension Age Winter Heating Payment this winter, and we believe that aiming to make payments in time for winter fuel bills is the right priority. However, after this winter, a solution should be sought to align qualifying weeks while not excluding people from help.

2.3 Restrictions

A person may be of pension age during the qualifying week, but not entitled to PAWHP, if they meet the conditions set out in draft regulations 4 and/or 5.

Draft regulation 5 says that an individual is not entitled to PAWHP if they are:

receiving free in-patient treatment for more than 52 weeks, including “in the qualifying week”
detained in legal custody “throughout the qualifying week”
living in a care home or independent hospital throughout the qualifying week and the period of 12 weeks immediately before the qualifying week and are receiving a relevant benefit ⁸
an individual who is not the “lead claimant” when receiving a benefit as a member of a couple is also not entitled to PAWHP

SCoSS notes that what constitutes “free in-patient treatment” is defined in the WFP regulations⁹ but not in the draft PAWHP Regulations. It is generally good practice to define such terms in regulations.

Recommendation 1: The Scottish Government should define in regulations what constitutes “free in-patient treatment”.

There is ambiguity in the wording of draft regulation 5 (a), which refers to being an in-patient “in” the qualifying week, which is not consistent with the wording of draft regulation 5(b) or (c), which refer to being in custody or a care home “throughout” the qualifying week. The distinction is important to someone who leaves hospital, custody or care in that week. Officials have confirmed that the intention is that regulation 5(a) should be in line with the other provisions.

Recommendation 2: In regulation 5(a) the Scottish Government should replace the words “in the qualifying week” with the words “throughout the qualifying week”.

With regard to the exclusion of people in custody, officials have confirmed that there was a drafting error in draft regulation 5(b), and that the updated regulation will include “under a sentence imposed by a court”. We welcome this clarification which will mirror the provision in WFP.

There is also ambiguity in the wording of draft regulation 5(c)(iii) which excludes from entitlement people living in a care home only if they also receive Pension Credit or another relevant benefit. However, as drafted, it is not clear which weeks of Pension Credit matter – whether just the qualifying week or also the 12 weeks before that. To mirror WFP, it is only receipt of a relevant benefit in respect of the qualifying week that matters. The same drafting as in regulation 5(c)(iii) also appears in regulations 9(2)(c)(ii) and 10(3)(b)(ii).

Recommendation 3: The Scottish Government should amend regulation 5(c)(iii) to add the words “in respect of the qualifying week” to ensure that getting benefit for an earlier period is ignored in deciding whether someone living in a care home is excluded from Pension Age Winter Heating Payment. Similar amendments should be made to regulations 9(2)(c)(ii) and 10(3)(b)(ii).

Instead of making two payments of £100 or £150 to couples who get Pension Credit or another ‘relevant benefit’, they get one double payment of PAWHP between them. This works the same way as the DWP’s Winter Fuel Payment. We understand that Social Security Scotland will only get bank details from the Department for Work and Pensions for the person who is the Pension Credit claimant and not for their partner so it is only administratively possible to pay PAWHP to the claimant. The amounts are listed in the table in section 4 below.

Draft regulation 5(d) uses the term “lead claimant” of a relevant benefit to make sure that only the Pension Credit claimant is entitled. This term is also used in draft regulations 9(3), 10(4) and 11(d). However, “lead claimant” is not defined in the draft Regulations. Officials have told us that it refers to the individual who receives the payment within a joint claim for any of the relevant benefits in regulation 2(1) (e.g. Pension Credit) and that they plan to include a definition to that effect. We are pleased that the term will be defined in the regulations, however, technically, these benefits are not claimed jointly by couples.¹⁰ Only one member of the couple can be the claimant and entitled to benefit.¹¹

For clarity, lead claimant should be framed in a way that reflects how Pension Credit and other relevant benefit claims operate legally, for example, by referring to the member of the couple who is entitled to benefit. Other less formal terms will be useful when explaining PAWHP in guidance.

Recommendation 4: The Scottish Government should define in regulations what constitutes a “lead claimant” in terms that reflect how Pension Credit and other relevant benefits operate legally.

Someone in residential care during the qualifying week (and the 12 weeks before that), is not eligible for PAWHP if they receive one of the “relevant benefits” (means-tested benefits including Pension Credit). Those in residential care who do not receive a “relevant benefit” receive half the usual award for their age.

Under the UK WFP scheme, reasons for differentiating between care home residents in this way were:

Residents of care homes who are not in receipt of Pension Credit are entitled to a shared Winter Fuel Payment of either £100 if they are aged 60 to 79 or £150 if they are aged 80 or over. […] This is because they share the accommodation with other people who are also entitled to the payment and are responsible for a share of the heating costs.

Residents of care homes who are in receipt of Pension Credit are not entitled to a Winter Fuel Payment. This is because historically people living in a care home and in receipt of an income-related benefit have received public funding for their care and accommodation costs including heating. Originally this was through the income-related benefit itself but for many years now has been through funding from the local authority. As this is still the case for the vast majority of people receiving Pension Credit, the Winter Fuel Payment is not payable.¹²

Similarly, the Scottish Government has stated that this is because people living in a care home and getting a low income benefit are likely to receive public funding for their care and accommodation costs including heating, through funding from the local authority.¹³ Other care home residents can receive half of the full rate of payment (see table in section 4 below). SCoSS notes that the Scottish Government’s analysis of consultation responses indicated that residential care was one of the issues which attracted the least agreement across respondents.¹⁴ The Government is not intending to make changes to the current rules for those in residential care.

However, SCoSS notes that the Scottish Government removed a proposed exclusion from the Winter Heating Payment regulations concerning people in alternative accommodation (such as a care home, hospital or prison) during the qualifying week, recognising that people’s situations could change during the winter months but they may still be responsible for energy costs at home.¹⁵

PAWHP rules mitigate such concerns to some extent by not excluding people who have been in hospital for less than a year or in a care home for less than 3 months. However, someone may convalesce in a care home for a few months and return home to independent living. And just a week in prison in the qualifying week is enough to exclude someone from help with heating bills at home that winter.¹⁶

Observation 2: SCoSS notes that temporary circumstances such as a short period in legal custody can result in people being excluded from Pension Age Winter Heating Payment. As part of its plans for monitoring and research of Pension Age Winter Heating Payment the Scottish Government could consider the impact on people who are excluded from entitlement due to temporary circumstances.